IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION 

STEPHEN WHITT, 

CASE NO. 2:12-CV-731

Petitioner, JUDGE JAMES L. GRAHAM

Magistrate Judge Elizabeth P. Deavers 

v. 

WARDEN, LEBANON 

CORRECTIONAL INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. On August 27, 2013, the Court issued an Opinion and Order denying, inter alia,

Respondent’s Motion to Dismiss and Supplemental Motion to Dismiss without prejudice to renewal and

directed Respondent to file a response. (See Doc. No. 40.) This matter now is before the Court on

the instant petition (Doc. No. 3), Respondent’s Return of Writ (Doc. No. 43), Petitioner’s

Response and Exhibits in Support (Doc. Nos. 46, 47), and all of the exhibits of the parties. For

the reasons that follow, the Magistrate Judge RECOMMENDS that the petition for a writ of

habeas corpus be DENIED and that this action be DISMISSED. 

Facts and Procedural History

The facts and procedural history of this case are detailed in this Court’s prior Order and

Report and Recommendation (Doc. No. 22). The case involves Petitioner’s June 15, 2010,

convictions after a jury trial in the Coshocton County Court of Common Pleas on two counts of

rape and two counts of sexual battery arising out the sexual abuse of Petitioner’s minor

granddaughter, resulting in the birth of two children. In a Judgment Entry dated April 15, 2010,

the trial court sentenced Petitioner to indefinite term of twenty-five years to life on count one,

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which occurred when the alleged victim was twelve-years old; nine years on count two, which

occurred when the alleged victim was thirteen-years old; seven years on the sexual battery

charged in count three, and four years on the sexual battery charged in count four. The court

merged the sentences on counts three and four with the sentences on counts one and two. 

Petitioner timely appealed, raising the following assignments of error: 

I. THE TRIAL COURT LACKED STATUTORY

JURISDICTION UNDER R.C. 2901.11 TO CONSIDER

THE SECOND AND FOURTH INCIDENTS AS THE

ALLEGED SEXUAL CONDUCT OCCURRED

OUTSIDE THE STATE OF OHIO.

II. APPELLANT'S CONVICTIONS WERE BOTH

AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND WERE NOT SUPPORTED BY THE

SUFFICIENCY OF THE EVIDENCE DUE IN PART TO

THE STATE'S FAILURE TO ESTABLISH VENUE IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE

14TH AMENDMENT TO THE U.S. CONSTITUTION,

ARTICLE I, SECTIONS 1, 10, & 16 OF THE OHIO

CONSTITUTION, R.C. 2901.12 AND CRIM. R. 29.

III. THE DENIAL OF THE DEFENSE SUPPRESSION

MOTION AND THE ADMISSION OF THE DNA TEST

RESULTS FROM THE APPELLANT'S MOUTH SWABS

VIOLATED THE 4TH AMENDMENT TO THE U.S.

CONSTITUTION AND ARTICLE I, SECTION 14 OF

THE OHIO CONSTITUTION.

IV. THE TRIAL COURT LACKED JURISDICTION TO TRY

THE APPELLANT WITHOUT A JURY.

V. THE SENTENCE WAS CONTRARY TO LAW AND

ALSO VIOLATED THE 5TH AND 6TH AMENDMENTS

TO THE U.S. CONSTITUTION.

VI. TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE

6TH AMENDMENT TO THE U.S. CONSTITUTION

AND ARTICLE I, SECTIONS 10, 16 OF THE OHIO

CONSTITUTION.”

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State v. Whitt, No. 10-CA-10, 2011 WL 2447416, at *3-*4 (Ohio App. 5th Dist. June 13, 2011). 

On June 13, 2011, the state appellate court sustained in part Petitioner’s fifth assignment of error

with respect to the trial court’s sentencing on counts three and four prior to merging those

convictions with the sentences on counts one and two, and remanded the case for re-sentencing. 

Id. at *9. Petitioner filed a timely appeal to the Ohio Supreme Court, in which he asserted the

following sole proposition of law: 

The parental or loco parentis nature of a relationship between an

adult and a child, and the diminished force element in child rapes,

do not automatically grant jurisdiction under R.C. 2901.11(A)(1)

for sex offenses against children that are initiated and completed

outside of Ohio. Section 16, Article I, Ohio Constitution; R.c.

2901.11(A)(1). 

See Exhibit 25 to Return of Writ, PageID#956. On November 2, 2011, the Ohio Supreme Court

dismissed the appeal. State v. Whitt, 130 Ohio St.3d 1417 (2011.) 

On January 30, 2012, the trial court, in a Judgment Entry filed on February 8, 2012, resentenced Petitioner pursuant to remand and merged the sexual battery counts with the rape

counts, sentencing Petitioner to an aggregate indefinite term of twenty-five years to life. See

State v. Whitt, No. 12-CA-3, 2012 WL 2612949, at *1 (Ohio App. 5th Dist. July 5, 2012). 

Petitioner appealed. As his sole assignment of error, Petitioner asserted that his sentence was

contrary to law and violated the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution, due process and equal protection of the law. Id. On July 5, 2012, the state

appellate court denied Petitioner’s appeal. Id. On November 7, 2012, the Ohio Supreme Court

dismissed Petitioner’s appeal. State v. Whitt, 133 Ohio St.3d 1467 (Nov. 7, 2012.) 

Petitioner pursued post-conviction relief. He asserted that he had been denied effective

assistance of counsel because his attorney failed to investigate and present exculpatory evidence

demonstrating that the trial court lacked jurisdiction. Specifically, Petitioner complained that his

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attorney failed to submit “log books” into evidence, on which Petitioner kept track of the dates

that he was out of town in his truck and showed he could not have committed the crimes alleged. 

Petitioner complained that defense counsel failed to challenge the jurisdiction of the trial court. 

He asserted that his attorney improperly advised him he could not testify on his own behalf,

present defense witnesses or exculpatory evidence, and any attempt to do so would merely anger

the trial judge. See Exhibit 38 to Return of Writ. Petitioner attached his own affidavit as well as

affidavits from Elizabeth Whit and Joanna Rafferty stating that neither Petitioner nor his

granddaughter went on a camping trip in 2007, and therefore he could not have committed the

acts alleged on those dates. Id. PageID# 1164-65; 1220. Petitioner also attached in support a

receipt dated July 10, 2008, for diesel fuel and what appears to be a copy of his “Daily Log,”

reflecting the dates that he was not in town. Most of the latter documents are not legible. Id.

PageID# 1167-1214.

 On September 5, 2012, the trial court denied Petitioner’s post-conviction action as 

untimely, based on Petitioner’s failure to exhaust appellate options and because Petitioner filed

his post conviction petition during the time that his appeal remained pending in the Ohio

Supreme Court. Exhibit 43 to Return of Writ. On December 24, 2012, the Ohio Court of

Appeals dismissed Petitioner’s appeal for want of prosecution. The Ohio Supreme Court

dismissed Petitioner’s subsequent appeal. 

On August 15, 2012, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He asserts that he is in the custody of the Respondent in violation

of the Constitution of the United States because the trial court lacked jurisdiction (claim one); his

convictions were against the manifest weight of the evidence and supported by constitutionally

insufficient evidence (claim two); the government violated the Fourth Amendment in obtaining

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his DNA (claim three); denial of the right to a jury trial and ineffective assistance of counsel

based on the waiver of his right to jury trial (claim four); that his sentence violates federal law

and the trial court improperly failed to merge his sentences as allied offenses of similar import

(claim five); denial of the effective assistance of counsel because his attorney failed to challenge

the indictment, challenge excessive bail as violating the Eight Amendment, challenge the

jurisdiction of the trial court, call defense witnesses, present an opening statement, object at trial

to prosecutorial misconduct and other trial errors; failure to review Petitioner’s log books, file a

motion to recuse the trial judge as biased, and file a motion for a new trial, despite advising

Petitioner that he would do so. (Claim six.) It is the position of the Respondent that all of

Petitioner’s claims fail to present issues appropriate for federal habeas corpus review or are

procedurally defaulted. 

Claim One – State Law Claim

In claim one, Petitioner asserts that the trial court lacked jurisdiction because the crimes

allegedly took place outside of Ohio. Petitioner argued on direct appeal and before the Ohio

Supreme Court that his convictions thereby violated Ohio law only, specifically Ohio Revised

Code §§ 2901.11(A)(1) and 2901.12. See Exhibits 16, 25 to Return of Writ. The state appellate

court likewise reviewed his claim for the alleged error of state law. State v. Whitt, 2011 WL

2447416, at *3-4. Petitioner argues that because his jurisdictional claim is so closely interwoven

with federal law that this Court must address any federal constitutional issue. Response,

PageID# 1458-59. This Court does not agree. 

A trial court’s determination of the proper venue, or jurisdiction over a case involves a

matter of state, and not federal law. “[V]enue for criminal proceedings in Ohio is a function of

state law.” Harris v. Jeffries, No. 3:06-cv-02887, 2007 WL 3340035, at *5 (N.D. Ohio Nov. 6,

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2007)(footnote omitted)(rejecting same argument presented herein.) “A state court's decision as

to proper venue or jurisdiction generally does not raise a cognizable constitutional claim.” 

Campa v. Erwin, No. C-1-03-550, 2005 WL 2313980, at *2 (S.D. Ohio Sept. 21, 2005)(citing

Davey v. Stegall, No. 95-2198, 1996 WL 708336, at * 1 (6th Cir. Dec. 5, 1996); Wellman v.

Chapleau, No. 95-6123, 1996 WL 325212, at * 2 (6th Cir. June 12, 1996). Thus, Petitioner’s

jurisdictional claim fails to present a federal issue and cannot provide a basis for habeas relief. 

A federal court may review a state prisoner’s habeas petition only on the grounds that the

challenged confinement is in violation of the Constitution, laws or treaties of the United States. 

28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a

perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848

F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional state

appellate court reviewing state courts’ decisions on state law or procedure. Allen v. Morris, 845

F.2d 610, 614 (6th Cir. 1988). “‘[F]ederal courts must defer to a state court's interpretation of its

own rules of evidence and procedure’” in considering a habeas petition. Id. (quoting Machin v.

Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). 

Claim one fails to provide a basis for federal habeas corpus relief.

Claim Two – Manifest Weight and Sufficiency of the Evidence 

In claim two, Petitioner asserts that his convictions are against the manifest weight of the

evidence and that the evidence was constitutionally insufficient to sustain his convictions. 

Petitioner’s claim regarding the manifest weight of the evidence fails to present an issue

appropriate for federal habeas corpus review. The Due Process Clause does not provide relief

for defendants whose convictions are against the manifest weight of the evidence. Instead, the

Due Process Clause extends only for those who have been convicted without enough proof to

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allow a rational trier of fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 F.2d

959, 969 (6th Cir. 1983). In the context of a claim alleging a violation of due process,

“sufficiency of the evidence” refers to the due process requirement that there be enough

evidence introduced in favor of the prosecution for a rational trier of fact to find each element of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In

reviewing a sufficiency of the evidence claim, a federal habeas court must defer to the trier of

fact with respect to issues of conflicting testimony, weight of the evidence, and the credibility of

the witnesses. Jackson, 443 U.S. at 319; Walker, 703 F.2d at 969.

Under Ohio law, however, a claim that a verdict was against the manifest weight of the

evidence-- as opposed to one based upon insufficient evidence-- requires the appellate court to

act as a “thirteenth juror” and to review the entire record, weigh the evidence, and consider the

credibility of witnesses to determine whether “the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” 

State v. Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). 

Since a federal habeas court does not function as an additional state appellate court, vested with

the authority to conduct such an exhaustive review, any claim that petitioner’s conviction was

against the manifest weight of the evidence cannot be considered by this Court.

Petitioner does not appear to argue that the evidence was constitutionally insufficient to

sustain his convictions. See Petition, PageID# 13; Response, PageID# 1455. He argues that

prosecution witnesses lied, and that his witnesses and log books establish that his convictions

were against the manifest weight of the evidence. 

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Assuming, however, that Petitioner’s claim of insufficiency of the evidence is properly

before this Court, the claim nonetheless lacks merit. The state appellate court rejected this claim

as follows: 

When reviewing a claim of sufficiency of the evidence, an

appellate court’s role is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt.

State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

Contrary to a manifest weight argument, a sufficiency analysis

raises a question of law and does not allow the court to weigh the

evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. The

relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, “any rational trier of fact could

have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Thompkins, 78 Ohio St.3d 380, 386,

1997–Ohio–52, 678 N.E.2d 541.

***

In the present case, the State had to prove that Appellant engaged

in sexual conduct with another person, not his spouse, who was

under the age of thirteen or that he compelled the other person to

engage in sexual conduct by force or threat of force.

N.P. testified that Appellant was her grandfather who she had lived

with since the age of two and that she viewed him as a father. She

also testified that she felt as if she could not say no when he

engaged in sexual intercourse with her and that he was threatening

and large. She testified that he raped her twice in the summer of

2007, and she had a child as a result. The child was determined to

have Appellant's DNA and that the statistics indicated that there

was a 99.9998 percent chance that Appellant was the child's father.

In May or June, 2008, Appellant again twice raped N.P. according

to her testimony, and a child was born as a result, and DNA

indicated that there was a 99.9999 percent chance that Appellant

was the child's father.

Courts have consistently held that testimony, if believed, is

sufficient to prove each element of the offense of rape. State v.

Lewis (1990), 70 Ohio App.3d 624. There is no requirement that a

rape victim's testimony be corroborated as a condition precedent to

conviction. Id. citing to State v. Love (1988), 49 Ohio App.3d 88,

91 and State v. Gingell (10th Dist.82), 7 Ohio App.3d 364, 365.

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See also In re: Fisher (June 25, 1998), Nos. 97APF10–1356 &

97APF11–1552, unreported where the court held that the victim's

testimony alone was sufficient to support the conviction for rape.

Accord, State v.. Banks (1991), 71 Ohio App.3d 214, 220.

Regarding Appellant's challenge to venue, R.C. 2901.12 states that

if any element of the offense occurred in the county where the case

is tried, then venue is properly established for that crime.

N.P. testified that she was raped by Appellant in his bedroom in

May or June, 2008. She also testified that she resided with

Appellant and her grandmother in Warsaw, Ohio, which is in

Coshocton County, Ohio. Accordingly, venue was properly

established for the sexual conduct occurring in counts two and

four.

With regard to the remaining elements of rape, we find that

sufficient evidence was also established. As we previously stated,

when rape involves a child and that child's parent, or person who

stands in loco parentis, subtle and psychological forms of coercion

sufficiently show force. So long as the prosecution establishes that

the victim's will was overcome by fear or duress, the forcible

element of rape can be established. State v. Eskridge (1988), 38

Ohio St.3d 56, 58–59.

N.P. testified that when Appellant had sex with her in his bedroom,

she had been asleep and woke up to Appellant having sex with her.

She also testified that she viewed Appellant as a parent and that

she was fearful of saying no to him. N.P. also gave birth to two

children, who Appellant was determined to be the father of.

Regarding counts one and three, Appellant only challenges the

sufficiency of the evidence as it relates to venue. Again, venue is

properly established if any element of the crime has been

established to have occurred in Coshocton County, Ohio.

Moreover, pursuant to R.C. 2901.12(H), when an offender, as part

of a course of criminal conduct, commits offenses in different

jurisdiction, the offender may be tried for all of those offenses in

any jurisdiction in which one of those offenses or any element of

one of those offenses occurred. Prima facie evidence of a course of

criminal conduct exists when the offenses involve the same victim.

R.C. 2901.12(H)(1).

There is sufficient evidence that the series of rapes occurred

between Appellant and N.P. and that when Appellant would take

N.P. with him in his semi-trucks on trips out of state, the trips

would originate in Coshocton County, Ohio, and that Appellant

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and N.P. would return to Appellant's home in Coshocton County,

Ohio.

Accordingly, we find sufficient evidence to support Appellant's

convictions with respect to counts one and three. Moreover, we do

not find that the convictions were against the weight of the

evidence. Based on the foregoing, and upon review of the record,

we cannot say that the trial court clearly lost its way in convicting

Appellant.

State v. Whitt, 2011 WL 2447416, at *5-6. 

The factual findings of the state appellate court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

28 U.S.C. § 2254(e)(1). Petitioner has presented no justification for this Court to disturb

the factual findings of the state appellate court here. 

Further, a federal habeas court may not grant relief unless the state court's decision was

contrary to or an unreasonable application of clearly established federal law, or based on an

unreasonable determination of the facts in light of the evidence that was presented.

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim-

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

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 28 U.S.C. § 2254(d). In order to obtain habeas corpus relief, a petitioner must show that the

state court's decision was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Bobby v.

Dixon, ––– U.S. ––––, 132 S.Ct. 26, 28 (2011) (quoting Harrington v. Richter, 562 U.S. ––––

––––, 131 S.Ct. 770, 786–87 (2011)). This bar is “difficult to meet” because “habeas corpus is a

‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for

ordinary error correction through appeal.” Harrington, 131 S.Ct. at 786 (quoting Jackson v.

Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)). In short, “[a] state

court's determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Id. (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

In order for a criminal defendant to be convicted consistent with the United States

Constitution, sufficient evidence must justify a reasonable trier of fact to find guilt beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. ta 319. To determine whether the evidence was

sufficient to support a conviction, this Court must view the evidence in the light most favorable

to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319.) The

prosecution is not affirmatively required to “rule out every hypothesis except that of guilty.” Id.

(quoting Jackson, at 326). “[A] reviewing court ‘faced with a record that supports conflicting

inferences must presume-- even if it does not appear on the record-- that the trier of fact resolved

any such conflicts in favor of the prosecution, and must defer to that resolution.’” Id. (quoting

Jackson, at 326). For the reasons discussed by the state appellate court, this Court likewise

concludes that, when viewing all of the evidence in the light most favorable to the prosecution,

the evidence was constitutionally sufficient to sustain petitioner's conviction.

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Under the AEDPA, a state court’s determination regarding a sufficiency of evidence

claim is entitled a “double layer” of deference. As explained in Brown v. Konteh, 567 F.3d 191,

205 (6th Cir. 2009), deference is due to the jury's finding of guilt because the standard,

announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Even if a de novo review leads to the

conclusion that no rational trier of fact could have so found, a federal habeas court “must still

defer to the state appellate court's sufficiency determination as long as it is not unreasonable.” 

See also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle for a

habeas petitioner to overcome. For the reasons discussed by the state appellate court, Petitioner

has failed to do so here. This Court agrees that, when viewing all of the evidence in the light

most favorable to the prosecution, as this Court is required to do, the evidence is constitutionally

sufficient to sustain Petitioner’s convictions. 

Claim two fails to provide a basis for relief. 

Claim Three – Fourth Amendment 

In claim three, Petitioner asserts that the State obtained DNA evidence against him in

violation of the Fourth Amendment and the trial court erred in denying his Motion to Suppress

this evidence. 

In Stone v. Powell, 428 U.S. 465, 481–82 (1976), the United States Supreme Court held

as follows: where the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, the Constitution does not require that a state prisoner be granted federal

habeas corpus relief on the ground that evidence obtained in an unconstitutional search or

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seizure was introduced at his trial.” Except under extremely limited circumstances, Stone v.

Powell precludes habeas corpus review of alleged Fourth Amendment violations.

To determine whether a petitioner was afforded a full and fair opportunity in the state

courts to litigate his Fourth Amendment claim, a federal habeas corpus court must engage in two

distinct inquiries. Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (citing Riley v.

Gray, 674 F.2d 522 (6th Cir. 1982)). First, the “’court must determine whether the state

procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment

claim. Second, the court must determine whether presentation of the claim was in fact frustrated

because of a failure of that mechanism.’” Id. (quoting Riley, 674 F.2d at 526); see also Harding

v. Russell, 156 F. App’x. 740, 745 (6th Cir. 2005); Crump v. LeCureux, No. 92–1027, 974 F.2d

1338, 1992 WL 214521, at *3 (6th Cir. Sept. 3, 1992). 

The Sixth Circuit has held that, by providing an opportunity for a criminal defendant to

file a pretrial motion to suppress and the opportunity to take a direct appeal from any adverse

ruling, Ohio has in place a state-procedural mechanism that presents the opportunity for full and

fair litigation of a Fourth Amendment claim. Riley, 674 F.2d at 526; see also Harding, 156 F.

App’x. at 745; Seymour v. Walker, 224 F.3d 542, 553 (6th Cir. 2000). Further, the record fails to

reflect that the presentation of petitioner’s Fourth Amendment claim was frustrated by any

failure of Ohio’s procedural mechanism. Here, the court of appeals fully considered his claim

that his Fourth Amendment right had been violated:

[Petitioner] argues that the trial court erred in denying his motion

to suppress the admission of the DNA results that were performed

pursuant to a search warrant after Appellant was indicted.

In reviewing the sufficiency of probable cause in an affidavit

submitted in support of a search warrant, an appellate court should

not substitute its judgment for that of the trial court by conducting

a de novo determination as to whether the affidavit contains

sufficient probable cause upon which that court would issue the

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search warrant. Rather, the duty of a reviewing court is simply to

ensure that the trial court had a substantial basis for concluding

that probable cause existed. In conducting any after-the-fact

scrutiny of an affidavit submitted in support of a search warrant,

appellate courts should accord great deference to the trial court's

determination of probable cause, and doubtful or marginal cases in

this area should be resolved in favor of upholding the warrant.

Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 231f7, 76 L.Ed.2d

527.

Crim. R. 41 provides that a warrant shall be issued if the issuing

judge is satisfied that probable cause for the search warrant exists.

Search warrants are permitted based on hearsay. The focus of

whether sufficient grounds exist for a search warrant is whether

there is reason to believe that there is a factual basis behind the

information and whether the source of the information is credible.

Crim. R. 41(C)(2).

In the present case, the judge who issued the warrant was informed

that the victim, who was 14 at the time that the warrant was issued,

had given birth to a child at the age of 13. The judge was informed

that the victim would not identify the father of her children, but

that family members had stated that she was sleeping with her

grandfather. The issuing judge was also informed by an affidavit

from the Department of Job and Family Services that a DNA test

had previously been performed by means of a April 8, 2009 Court

Order from the Juvenile Division which showed that it was

99.9999 percent probable that Appellant was the father of N.P.'s

two children. Accordingly, we find that there was sufficient,

credible infSormation to support a finding of probable cause to

issue the search warrant.

We do not find Appellant's arguments that the fact that the prior

DNA test results or the juvenile court's order were not attached to

the present affidavit to be persuasive. There is no requirement that

such documentation be attached to a probable cause affidavit to

issue a search warrant. The issuance of the warrant was in

compliance with Crim. R. 41.

Appellant's. . . assignment of error is overruled.

State v. Whitt, 2011 WL 2447416, at *6-7. 

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Petitioner’s claim regarding the alleged violation of the Fourth Amendment fails to

provide a basis for relief.1

 

Claims Three through Six

In claim three, in addition to the Fourth Amendment claim already discussed and rejected

, Petitioner asserts that he was denied effective assistance of counsel because his attorney failed

to raise an issue regarding the denial of the right to counsel during the acquisition of his DNA

material. In claim four, Petitioner asserts that he was denied his right to a jury trial and that his

lawyer improperly advised him to waive his right to jury trial. In claim five, Petitioner asserts

that his sentence was contrary to law and the Constitution and because the trial court failed to

merge allied offenses of similar import for sentencing purposes or because his sentence violated

the Double Jeopardy Clause. In claim six, Petitioner asserts that he was denied effective

assistance of counsel because his attorney failed to challenge the indictment, excessive bail as a

violation of the Eighth Amendment, the jurisdiction of the trial court, call defense witnesses,

object to prosecutorial misconduct and other trial errors, review log books, file a motion to

recuse the trial judge, file a motion for a new trial, and for waiving opening statement. Petitioner

has waived all of these claims for review by failing to raise his on-the-record claims in the Ohio

Court of Appeals or in the Ohio Supreme Court. 

Procedural Default

In recognition of the equal obligation of the state courts to protect the constitutional

rights of criminal defendants, and in order to prevent needless friction between the state and

federal courts, a state criminal defendant with federal constitutional claims is required to present

those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the

1 As noted by Respondent, Return of Writ, PageID# 736-37, the claim also is waived due to

Petitioner’s failure to raise the claim in the Ohio Supreme Court. See discussion on procedural

default, infra. 

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petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is

subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S.

722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural

default, the petitioner can no longer present the relevant claims to a state court, the petitioner

also waives the claims for purposes of federal habeas review unless he or she can demonstrate

cause for the procedural default and actual prejudice resulting from the alleged constitutional

error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v.

Carrier, 477 U.S. 478, 485 (1986).

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether

procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the

four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth

Circuit requires the district courts to engage in the following inquiry:

First, the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule. . . . Second, the court must decide

whether the state courts actually enforced the state procedural

sanction. . . . Third, the court must decide whether the state

procedural forfeiture is an adequate and independent state ground

on which the state can rely to foreclose review of a federal

constitutional claim. 

Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if “the court determines that a state

procedural rule was not complied with and that the rule [has] an adequate and independent state

ground, then the petitioner” may still obtain review of his claims on the merits if he establishes: (1)

a substantial reason to excuse the default and (2) that he was actually prejudiced by the alleged

constitutional error. Id. ‘Cause’ under this test “must be something external to the petitioner,

something that cannot fairly be attributed to him[;] . . . some factor external to the defense [that]

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impeded [] efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 753. This

“cause and prejudice” analysis also applies to failure to raise or preserve issues for review at the

appellate level or failure to appeal at all. Id at 750.

Nevertheless, “‘[i]n appropriate cases’ the principles of comity and finality that inform the

concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust

incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135 (1892)). 

Petitioners who fail to show cause and prejudice for procedural default may nonetheless receive a

review of their claims if they can demonstrate that a court’s refusal to consider a claim would

result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott v. Coyle,

261 F.3d 594, 601–02 (6th Cir. 2001) (same). The fundamental miscarriage of justice exception

requires a showing that “in light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995). 

All of Petitioner’s on-the-record claims are waived due to Petitioner’s failure to raise these

claims on direct appeal. This failure constitutes a clear procedural default based on the rule in

Ohio that errors which appear on the face of the record must be raised on direct appeal or will be

deemed forfeited. If petitioner were to attempt to raise his claims by any other means, they would

be barred by Ohio’s doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v.

Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175. 

The procedural rule barring petitioner’s claims for relief constitutes an adequate and

independent state ground for denying relief. The requirement that all available claims be asserted

in the first appellate proceeding serves the state’s interest in finality and in ensuring that claims are

adjudicated at the earliest possible opportunity. Further, Ohio’s res judicata rule is adequate and

independent under the third part of the Maupin test. The doctrine of res judicata is stated in

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unmistakable terms in numerous Ohio decisions. Ohio courts have consistently refused to review

claims on the merits under that doctrine. See State v. Cole; State v. Ishmail; State v. Perry.

 Petitioner argues that, because he attempted to raise his claims in various state court

proceedings, all of his claims must be considered by this Court. Response, PageID# 1447. He

contends that Ohio’s doctrine of res judicata is an insufficient basis upon which to enforce a

procedural default. Id. PageID# 1451. He asserts that he is actually innocent of the crimes and is

the victim of a manifest miscarriage of justice, so that the Court must consider the merits of claims

he otherwise has waived for review. Response, PageID# 1464. Petitioner’s arguments fail to

persuade this Court. 

Petitioner argued in the Ohio Court of Appeals and Ohio Supreme Court after resentencing, that the trial court illegally imposed sentence. The Ohio Court of Appeals, however, 

dismissed this claim as barred under Ohio’s doctrine of res judicata: 

Appellant claims his resentencing was contrary to law. We disagree.

We note appellant directly appealed his convictions and sentences on

July 9, 2010. This court affirmed appellant's convictions, but

reversed the sentences on the sexual battery counts which had been

imposed prior to the merge, stating the following:

“The trial court erred in sentencing Appellant on counts three and

four, as those convictions should have merged prior to sentencing,

not after. Accordingly, the trial court must resentence Appellant in

accordance with R.C. 2941.25 with respect to allied offenses.

“We do not find Appellant's other arguments regarding sentencing to

be persuasive. We find that the trial court properly advised Appellant

of the mandatory postrelease control provisions, and that it was

within the trial court's discretion to impose a sentence within the

statutory range for counts one and three.” State v. Whitt, Coshocton

App. No. 10–CA–10, 2011–Ohio–3022, ¶ 72–73.

Therefore, the doctrine of res judicata applies to this case. Res

judicata is defined as “[a] valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out

of the transaction or occurrence that was the subject matter of the

previous action.” Grava v. Parkman Twp., 73 Ohio St.3d 379,

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1995–Ohio–331, syllabus. The appeal sub judice is limited to any

issues arising from the resentencing entry. State v. Lester, 130 Ohio

St.3d 303, 2011–Ohio–5204. 

In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶ 4, the

Supreme Court of Ohio set forth the following two-step approach in

reviewing a sentence:

“In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to

the existing statutes, appellate courts must apply a two-step

approach. First, they must examine the sentencing court's compliance

with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary

to law. If this first prong is satisfied, the trial court's decision shall be

reviewed under an abuse-of-discretion standard.”

In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore

(1983) 5 Ohio St.3d 217.

We note although in Oregon v. Ice (2009), 555 U.S. 160, the United

States Supreme Court upheld the constitutional validity of an Oregon

statute similar to Ohio's pre- Foster sentencing statutes, the Supreme

Court of Ohio in State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768,

2010–Ohio–6320, held the Oregon case did not revive the Foster

statutes, and trial courts are not obligated to engage in judicial factfinding prior to imposing consecutive sentences.

Appellant argues the trial court erred in making factual findings

regarding the consecutive nature of the sentences. In addition,

appellant makes a convoluted and confusing argument regarding

allied offenses of similar import.

A review of the January 30, 2012 resentencing hearing transcript and

the February 8, 2012 judgment entry on resentencing reveals the trial

court did not make any factual findings on the worst form of the

offense as argued by appellant.

The rape counts and the sexual battery counts were allied offenses

and the trial court was instructed by this court on remand to merge

the two rape counts with the two sexual battery counts prior to

imposing sentence, rather than sentencing appellant on all four

counts and then merging the sentences. A review of the judgment

entry on resentencing establishes that the trial court correctly

followed this court's instructions.

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If appellant is arguing there should have been one conviction only

for the merged rape/sexual battery counts, we find the Supreme

Court of Ohio in State v. Whitfield, 124 Ohio St.3d 319,

2010–Ohio–2, ¶ 26–27, addressed this issue as follows:

“On remand, the trial court should fulfill its duty in merging the

offenses for purposes of sentencing, but remain cognizant that R.C.

2941.25(A)'s mandate that a ‘defendant may be convicted of only

one’ allied offense is a proscription against sentencing a defendant

for more than one allied offense. Nothing in the plain language of the

statute or in its legislative history suggests that the General

Assembly intended to interfere with a determination by a jury or

judge that a defendant is guilty of allied offenses. As the state

asserts, by enacting R.C. 2941.25(A), the General Assembly

condemned multiple sentences for allied offenses, not the

determinations that the defendant was guilty of allied offenses.

“Because R.C. 2941.25(A) protects a defendant only from being

punished for allied offenses, the determination of the defendant's

guilt for committing allied offenses remains intact, both before and

after the merger of allied offenses for sentencing.* * *Thus, the trial

court should not vacate or dismiss the guilt determination.”

(Footnote omitted.)

Upon review, we find appellant's resentencing is not contrary to law.

The sole assignment of error is denied. 

State v. Whitt, 2012 WL 2612949, at *1-*3.2

 Thus, the state appellate court explicitly indicated

that Petitioner could not raise, in his re-sentencing appeal, claims that should have been raised in

his initial appeal, but were not. 

As discussed, the State of Ohio has a procedural rule that claims must be raised on direct

appeal, if possible, or they will be barred by the doctrine of res judicata. Moreover, as discussed,

2 Although the state appellate court alternatively dismissed the claim on the merits, such

alternative ruling does not forgive the waiver or otherwise revive the claim for purposes of habeas

corpus review. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“a state court need not fear reaching

the merits of a federal claim in an alternative holding”); Bowling v. Parker, 344 F.3d 487, 498 (6th

Cir. 2003) (where state court's dismissal of claim on merits constitutes an alternative holding, federal

habeas court will consider the claim procedurally defaulted); Kenney v. Haviland, No. 1:04 CV

2194, 2006 WL 2792171, at *6 n.8 (N.D. Ohio Sept.26, 2006) (“The mere existence of the clear

statement rule confirms that an alternative holding on the merits cannot save a claim where the court

clearly and expressly enforces a state procedural bar”).

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Ohio's res judicata rule is adequate and independent under the third part of the Maupin test to

foreclose federal habeas review. The Sixth Circuit has consistently held that Ohio's doctrine of res

judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v.

Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir.

2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486,

521–22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.1998). Ohio courts have

consistently refused, in reliance on the doctrine of res judicata, to review the merits of claims

because they are procedurally barred. State v. Cole; State v. Ishmail. 

Petitioner’s off-the-record claims include his claim that his attorney was ineffective by

failing to call defense witnesses and failing to submit the Log Books, which purportedly would

have shown that Petitioner could not have committed the crimes alleged during the time periods at

issue. Petitioner, however, waived those claims because he filed an untimely post-conviction

petition, and because the state appellate court subsequently dismissed Petitioner’s appeal for

failure to prosecute under Ohio Appellate Rule 18(C). See Exhibit 46 to Return of Writ. In making

this ruling, the state appellate court found that Petitioner had failed to follow state procedural rules

and it dismissed the case on this basis, enforcing Petitioner’s failure to comply with those rules. 

Failure to comply with written procedural rules detailing the timing

and filing of appellate documents has been adjudged a bar to federal

habeas review when the rules of appellate procedure breached are

well-established and regularly followed, i.e., adequate and

independent State procedural rules. See Nethers v. Sheldon, 2010

WL 4513816 (S.D. Ohio 2010) (finding that a petitioner's failure to

file a timely memorandum in support of his motion for delayed

appeal and the State court's subsequent dismissal of the motion for

failure to prosecute constitutes an independent and adequate State

ground to bar review of federal habeas grounds for relief); see also

Shroyer v. Moore, 2007 U.S. Dist. LEXIS 63811, 2007 WL 2492312

(S.D. Ohio Aug. 29, 2007), (“In so ruling, the court clearly and

expressly relied on both an independent and adequate State ground

stemming from petitioner's noncompliance with the court's wellestablished and regularly-followed written procedural rules

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governing the timing and filing of the requisite appeal documents.”);

see also James v. Warden, 2007 WL 2326867, *4 (S.D. Ohio 2007)

(“Dismissals for failure to comply with a court order and for want of

prosecution involve a ‘firmly established and regularly followed’

practice utilized by all courts, not only the courts of Ohio.”).

Marshall v. Brunsman, No. 1:09-cv-0259, 2010 WL 5627669, at *8 (N.D. Ohio Dec. 3, 2010). 

Petitioner still may obtain review of his claims on the merits if he can establish cause for

his procedural defaults as well as actual prejudice from the alleged constitutional violations. The

Supreme Court has said that “the existence of cause for a procedural default must ordinarily turn

on whether the prisoner can show that some objective factor external to the defense impeded

counsel's efforts to comply with the State’s procedural rule.” Murray, 477 U.S. at 488; see also

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003)(same)(citing Coleman, 501 U.S. at 753). 

In Martinez v. Ryan, -- U.S. --, --, 132 S.Ct. 1309 (2012), the United States Supreme Court

held that where, as here, state collateral proceedings provide the first opportunity to raise a claim

of ineffective assistance of trial counsel, inadequate representation in those proceedings may

constitute cause for a procedural default. The Martinez Court refused hold as a matter of

constitutional principle that it was creating an exception to the long-standing general rule that

“there is no right to counsel in state collateral proceedings.” Coleman, 501 U.S. at 755. Instead,

Martinez stands for the proposition either “no counsel” or “inadequate assistance of counsel at

initial-review proceedings” may constitute “cause” for a prisoner’s default of a ground for relief

that could only be raised in a collateral review petition. Martinez, 132 S.Ct. at 1315. The limited

holding in Martinez, does not, however, apply to “attorney errors in other kinds of proceedings,

including appeals from initial-review collateral proceedings[.]” Id. at 1320 (citations

omitted)(“[S]tate collateral cases on direct review from state courts are unaffected by the ruling in

this case.”); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013). Because Petitioner waived his

off-the-record claims by failing to follow state procedural rules in regard to his post-conviction

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appeal, and the state appellate court dismissed his appeal based on his failure to prosecute under

Ohio Appellate Rule 18(C), Petitioner cannot establish cause for his procedural default under the

holding of Martinez.

Petitioner asserts as cause for his procedural default in failing to raise on-the-record claims

in the Ohio Court of Appeals, that he was denied effective assistance of appellate counsel. That

claim, however, cannot establish cause for Petitioner’s procedural default, because Petitioner never

presented the claim to the Ohio courts. See Edwards v. Carpenter, 529 U.S. 446, 451-52

(2000)(holding that ineffective assistance of counsel may constitute cause for a procedural default

so long as the claim has been presented to state court and is not itself defaulted). 

According to Petitioner, he did not waive any claim of ineffective assistance of counsel,

because his attorney in the Ohio Supreme Court refused to raise additional assignments of error,

despite Petitioner’s request. Response, PageID#1456. Petitioner has attached copies of letters he

wrote, asking the assistant public defender to preserve other direct appeal claims for review in the

Ohio Supreme Court. See Exhibits I, J to Response. 

A claim of ineffective assistance of counsel may constitute cause for a procedural default

“only at a stage of the proceedings where a petitioner has a Sixth Amendment right to counsel. . . . 

It does not extend to discretionary appeals or collateral post-conviction proceedings.” Mapp v.

Ohio, No. 2:12-cv-1039, 2013 WL 4458838, at *2 (S.D. Ohio Aug. 20, 2013)(quoting Wilson v.

Hurley, 382 F. App’x. 471, 478 (6th Cir. 2010)). Petitioner had no Sixth Amendment right to

counsel in connection with the discretionary appeal to the Ohio Supreme Court. See Pennsylvania

v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of

right, and no further.”); Ross v. Moffitt, 417 U.S. 600, 610–12 (1974)(right to appellate counsel

does not extend beyond the first appeal as of right to discretionary appeals to the state’s highest

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court or to petitions for review by the United States Supreme Court). Petitioner has failed to

establish cause for his procedural defaults. 

Petitioner asserts that he is actually innocent of the charges against him. The United States

Supreme Court has held that a claim of actual innocence may be raised “to avoid a procedural bar

to the consideration of the merits of [the petitioner’s] constitutional claims.” Schlup v. Delo, 513

U.S. 298, 326–27 (1995). “[I]n an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually innocent, a federal habeas court may

grant the writ even in the absence of a showing of cause for the procedural default.” Murray, 477

U.S. at 496. In Schlup, the Supreme Court held that a credible showing of actual innocence was

sufficient to enable a court to reach the merits of an otherwise procedurally-barred habeas petition. 

Schlup, 513 U.S. at 317. The actual innocence claim in Schlup is “‘not itself a constitutional

claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.’” Id. at 315 (quoting Herrera v. Collins, 506

U.S. 390, 404 (1993)).

The actual innocence exception allows a petitioner to pursue her constitutional claims if it

is “more likely than not” that new evidence-not previously presented at trial-would allow no

reasonable juror to find her guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th

Cir. 2005). The Court of Appeals for the Sixth Circuit explained the exception thoroughly in

Souter: 

The United States Supreme Court has held that if a habeas petitioner

“presents evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial unless the court is also

satisfied that the trial was free of nonharmless constitutional error,

the petitioner should be allowed to pass through the gateway and

argue the merits of his underlying claims.” Schlup, 513 U.S. at 316,

115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is

whether “new facts raise[ ] sufficient doubt about [the petitioner's]

guilt to undermine confidence in the result of the trial.” Id. at 317,

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513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual

innocence, “a petitioner must show that it is more likely than not that

no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130

L.Ed.2d 808. The Court has noted that “actual innocence means

factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

“To be credible, such a claim requires petitioner to support his

allegations of constitutional error with new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence-- that was not presented at

trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130 L.Ed.2d 808. The

Court counseled however, that the actual innocence exception should

“remain rare” and “only be applied in the ‘extraordinary case.’ ” Id.

at 321, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808.

Souter, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards. The

Court’s independent review of the petition and record fails to reveal that any “new facts” have

arisen that undermine the result of Petitioner’s trial. Petitioner cannot, therefore, establish a claim

for actual innocence sufficient to avoid his procedural default. 

WHEREUPON, the Magistrate Judge RECOMMENDS that the petition for a writ of

habeas corpus be DENIED and that this action be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

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The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,

106 S.Ct. 466, 88 L.Ed.2d 435, (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

_s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

United States Magistrate Judge

Date: June 26, 2014

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